Information & Ethics Committee on May 17th, 2007

[Prof. Amir Attaran]

I've been over that in my testimony already, and I don't think it's necessary to rehash it.

[Bruce Stanton, Conservative, Simcoe North, ON]

Maybe I missed it on the way through.

[The Chair, Liberal, Tom Wappel]

Professor, if the member doesn't remember, it would be helpful if you would tell us again.

[Prof. Amir Attaran]

Very well.

With respect to the Access to Information Act request I filed on January 24 and re-filed in somewhat different terms on March 29, both of which sought disclosure of the Afghanistan human rights report for 2006, and the earlier one of which sought previous years too, it was explained to me by the responsible employee for access to information in DFAIT, Mr. Gary Switzer, that he would have to send the documents he intended to disclose to me to somebody else for review before they could be disclosed. He was at the time in possession of the documents and had already decided on excisions to the documents, and he would have had to send them to somebody else. He did not tell me who it was--

[Bruce Stanton, Conservative, Simcoe North, ON]

Okay, so why would--

[Prof. Amir Attaran]

Further, if I may finish--

[Bruce Stanton, Conservative, Simcoe North, ON]

Just a moment. Why—

[The Chair, Liberal, Tom Wappel]

Professor, let him ask the question, so he can direct you where he wants.

[Bruce Stanton, Conservative, Simcoe North, ON]

I do remember hearing that part. Thank you.

Why do you conclude that it was political for this additional person to be required to review the document further?

[Prof. Amir Attaran]

What I was saying before you posed the second question--and I'll return to answering in the sequence I had in mind--is that the further evidence is the nature of the excisions that have been made.

To take an example, the very first sentence of paragraph one of this document--which has been excised, ostensibly on the legal authority of subsection 15(1)--reads: “Despite some positive developments, the overall human rights situation in Afghanistan deteriorated in 2006.”

That sentence cannot possibly, in my opinion as a professor of law and from reading the law, be justified under subsection 15(1).

I'll give you another example. The next excision, later in the same paragraph, is cut. This is what it said before it was cut: “Extra judicial executions, disappearances, torture and detention without trial are all too common. Freedom of expression still faces serious obstacles, there are serious deficiencies in adherence to the rule of law and due process by police and judicial officials. Impunity remains a problem in the aftermath of three decades of war and much needed reforms of the judiciary systems remain to be implemented.”

Nothing, sir, about that passage possibly falls within the ambit of subsection 15(1)--

[Bruce Stanton, Conservative, Simcoe North, ON]

Professor, with the greatest of respect, this is only a difference of opinion.

[Prof. Amir Attaran]

--and it would only have been cut for political reasons, I believe.

[Bruce Stanton, Conservative, Simcoe North, ON]

Well, that's your conclusion. I still don't see that there's evidence of it. What we have here is a difference of opinion as to how the provisions of the Access to Information Act have been applied in terms of redacting the document. I think that's a matter to be brought before the Information Commissioner, as you rightly have done.

Do I have a bit more time, Mr. Chair?

[The Chair, Liberal, Tom Wappel]

Yes.

[Bruce Stanton, Conservative, Simcoe North, ON]

In respect of the Information Commissioner, in the past you've had some experience with bringing a complaint before the Office of the Information Commissioner. I recall you mentioned, for example, that they can't order papers to be produced, and so on. I'm sure you're familiar with the fact that the commissioner does have the power to use the Federal Court, and has been successful in doing that; I think 90% of the time they are successful in compelling, in fact, those documents.

In your experience with this, how have you found the Office of the Information Commissioner to be, in terms of being able to reconcile these issues? When a complaint is brought and there's a difference of opinion and it's an ombudsman approach to resolving these, have you seen that in fact the commissioner has served the purposes of access in that regard?

[Prof. Amir Attaran]

I'm glad you mentioned the Federal Court.

This same document, the Afghanistan 2006 report, has been requested by plaintiffs Amnesty International and the B.C. Civil Liberties Association in their judicial review now before the Federal Court.

Amnesty International and the BCCLA requested that the document be produced in accordance with the rules of the Federal Court. The Attorney General for this government--for the respondents in that matter, who are General Hillier and Defence Minister Gordon O'Connor--objected to the disclosure of the report even to the Federal Court, citing national security exemptions.

That exception to national security--and this will tell you how confident I am in these procedures--I do not believe is a legitimate one. I believe it is simply being employed to withhold from the court this evidence. Where I assume the status of the matter is now--because in fact the judicial proceedings, according to section 38 of the Canada Evidence Act, are secret--

[Bruce Stanton, Conservative, Simcoe North, ON]

Could you speak to my question about the Information Commissioner, though, please?

[Prof. Amir Attaran]

Yes, I will, because these both involve the Federal Court.

[The Chair, Liberal, Tom Wappel]

You're going to have to move it along, though, Professor.

[Prof. Amir Attaran]

Once the Attorney General does mention a document he believes is privileged under national security, the Attorney General will make a secret application to the Federal Court to maintain it as secret--the document, that is--so it would seem to me that although we've had difficulty getting the document out of DFAIT, we are having additional difficulty, in the context of the Amnesty International and BCCLA matter, in getting it before the Federal Court.

In view of this, in view of the government's unwillingness to cooperate with both ATI requesters and Federal Court processes, I am not sanguine that the Information Commissioner will get all the cooperation he is due under the act in this investigation.

[Bruce Stanton, Conservative, Simcoe North, ON]

Okay. The question really was how you feel the commissioner has been able to perform in resolving these issues, because what we've seen is, frankly, that they have been able to.

[Prof. Amir Attaran]

My answer has been that I'm not sanguine with the process.

[Bruce Stanton, Conservative, Simcoe North, ON]

Okay.

[The Chair, Liberal, Tom Wappel]

Thank you.

We now go to Monsieur Vincent.

[Robert Vincent, Bloc, Shefford, QC]

Thank you, Mr. Chairman.

I would like to give my last two minutes to my colleague, please.

I want to thank you for coming here today. May I ask each of you to provide in writing the chronology of events surrounding the request of this report? Some events occurred in March, May and February. I would like to have the chronology of events to see how you went about obtaining the report.

Second, if subsection 15(1) of the act in no way applies to this report, who would benefit from censoring such information and why was this done?